Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter I.16: Interpretation, autonomous

Hannes Rösler

I. Introduction

Methods of interpretation can vary depending on the jurisdiction in question and this can contribure to the divergent application of conventions and EU laws. Autonomous interpretation in international and EU law counterbalances this often rather unnoticed reliance on the particular methods, meanings and concepts of domestic law. Since private international law is increasingly composed of norms derived from such supranational sources, the avoidance of divergent understandings of legal concepts and provisions arising out of autonomous interpretation is of profound importance. In this context, it is worth noting the major differences even among the EU Member States (Stefan Vogenauer, Die Auslegung von Gesetzen in England und auf dem Kontinent – Eine vergleichende Untersuchung der Rechtsprechung und ihrer historischen Grundlagen (Mohr Siebeck 2001)). Some jurisdictions tend to interpret more according to the actual wording of pieces of legislation. This is frequently the case in Eastern European states with formerly socialist legal systems that follow a more positivistic approach. In contrast, other Member States tend to go beyond the wording and deploy a purposive interpretation, such as →Germany. Some legal orders, for example →France, do not expressly distinguish between interpretation and the further development of written law by judges. Other systems distinguish between the two. Germany does so whereby the latter is called richterliche Rechtsfortbildung, and requires more elaborate reasoning on the part of the judge.

II. Techniques of restricting the homeward domestic trends in interpretation

To counterbalance the danger that international law is interpreted differently depending on the individual forum state with its own procedural understandings, conflict of law stance, substantive solutions and generally preferred methods, many conventions expressly require that they are to be interpreted in the light of their international character and specific aims (eg art 18 Rome Convention (Rome Convention on the law applicable to contractual obligations (consolidated version), [1998] OJ C 27/34), art 7(1) →CISG (United Nations Convention of 11 April 1980 on Contracts for the International Sale of p. 1007Goods, 1489 UNTS 3), art 4 Ottawa Factoring Convention (UNIDROIT Convention on International Factoring of 28 May 1988, 2323 UNTS 373, 27 ILM 943; →Factoring (uniform law)), art 6 UNIDROIT Financial Leasing Convention (UNIDROIT Convention of 28 May 1988 on International Financial Leasing, 2312 UNTS 195, 27 ILM 931; →Financial leasing (uniform law)); see furthermore, arts 26, 31 ff Vienna Convention on the Law of Treaties (of 23 May 1969, 1155 UNTS 331)). The same is true for international principles (art 1.6 of the UNIDROIT Principles (International Institute for the Unification of Private Law/ Institut international pour l’unification du droit privé, UNIDROIT Principles of International Commercial Contracts 2010 (3rd edn, UNIDROIT 2010)); see also art 1:104 Principles of European Insurance Contract Law (Jürgen Basedow and others (eds), Principles of European Insurance Contract Law (2nd edn, Sellier 2015))) and the withdrawn proposal for a Common European Sales Law (Proposal of 11 October 2011 for a Regulation of the European Parliament and of the European Council on a Common European Sales Law COM(2011) 635 final) (Annex I art 4 CESL-D; →CESL).

However, neither EU primary law nor for example the Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12/1) (→Brussels I (Convention and Regulation)) and the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation), contain such a guideline or define a similar general goal of uniform application. (Although Recital (11) of the →Rome II Regulation (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40) states that ‘non-contractual obligation’ has to be understood as an autonomous concept.) This might surprise, considering that EU law has 24 equally official language versions with ample scope for ambiguity. In addition, the situation has become far more complex compared to the starting point in 1957, when originally the European Economic Community (EEC), the EU predecessor, had only four official languages. Looking beyond EU law, despite its many contracting parties worldwide, the →CISG has only six official language versions.

The reason for this omission of an express autonomous interpretation requirement lies in the institutional design: the establishment of the European Court of Justice (CJEU; →Court of Justice of the European Union), which lends EU law one of its most distinctive features compared to other international communities. The CJEU has an exclusive jurisdiction to provide the definitive interpretation of EU primary law, but also regarding issues of EU secondary law as referred to the ECJ by Member State courts (art 19 TEU (Consolidated Version of the Treaty on European Union [2012] OJ C 326/13), art 267 TFEU (The Treaty on the Functioning of the European Union TFEU (consolidated version), [2012] OJ C 326/47)). Thereby, the ECJ (which forms the major part of the CJEU and which is responsible for responding to such references) is the guardian of the rule of law and of equality under the law. As is commonly known, the ECJ has played a fundamental role in developing the constitutional dimension of EU law (especially, direct effect and supremacy of EU law as well as the establishment of a human rights jurisprudence).

On a smaller scale, the ECJ develops, defines and defends the concept of autonomous interpretation. The effect on the national level is self-evident. Since the Member States courts, as a matter of EU law, are under a duty to follow the meta-principle of autonomous interpretation, they also have to adhere to specific ECJ definitions of particular terms. For example, the Member States courts have to follow the ECJ’s autonomous concept of ‘civil and commercial matter’ (as defined since Case 29/76 LTU Lufttransportunternehmen GmbH & Co KG v Eurocontrol [1976] ECR 1541) that determines the scope of application of both the Brussels I and the Rome I Regulation (→Civil and commercial matters). After all, the effect of the ECJ’s decisions based on the reference procedure according to art 267 TFEU is not only inter partes. The purpose goes beyond the resolution of a pending case. The procedure aims at achieving a uniform interpretation and application of EU law as a whole (see Hannes Rösler, Europäische Gerichtsbarkeit auf dem Gebiet des Zivilrechts – Strukturen, Entwicklungen und Reformperspektiven des Justiz- und Verfahrensrechts der Europäischen Union (Mohr Siebeck 2012) 447 f). Since the p. 1008EU, under the guidance of the ECJ, pursues the most developed autonomous interpretation, EU private international law and international civil procedure will be the focal point of the following considerations.

In the area of interest autonomous interpretation commenced with the Brussels Convention (Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, [1972] OJ L 299/32, consolidated version, [1998] OJ C 27/1) (→Brussels I (Convention and Regulation)). In Tessili (Case 12/76 Industrie Tessili Italiana Como v Dunlop AG [1976] ECR 1473) the Court stated the general rule that ‘words and concepts used in the Convention must be regarded as having their own independent meaning and as being thus common to all the Member States or as referring to substantive rules of the law applicable in each case under the rules of conflict of laws of the court before which the matter is first brought, the appropriate choice can only be made in respect of each of the provisions of the convention to ensure that it is fully effective having regard to the objectives of’ the preliminary reference procedure (Case 12/76 Industrie Tessili Italiana Como v Dunlop AG [1976] ECR 1473, summary no 2).

In the Tessili decision, the ECJ had explained that nonetheless the ‘place of performance of the obligation in question’ in the Brussels Convention had to be defined according to the rules of conflict of laws of the court before which the matter is brought (→Place of performance; →Jurisdiction, contracts and torts). Thus, under the Convention an autonomous definition of ‘place of performance’ was not feasible. When the EU legislator ‘communitized’ the Convention by transforming it into the Brussels I Regulation, it took this one further step. Also the follow-up provision in art 7(1)(b) Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1; →Brussels I (Convention and Regulation)) contains an autonomous definition in the case of the sale of goods and the provision of services and only where the place of performance is in an EU Member State. In all the other instances is recourse to the national substantive law, ie the lex causae, still required (art 7(1)(b) Brussels I Regulation (recast)).

III. Interests in autonomous interpretation

1. Normative perspective: rule of law in an integrated legal regime

The requirement of a uniform and thus autonomous interpretation is embodied in the logic of the rule of EU law. It is a natural consequence of the legislative unification effort itself. The EU intends to maintain and develop an area of freedom, security and justice (see in general arts 67 ff TFEU and eg the relevant reference in Recital (3) of the Brussels I Regulation (recast)). Without a harmonious, coherent and thus autonomous interpretation, the regulated areas now stretching from international contract and tort law to family and international succession matters would be re-nationalized through the backdoor of the Member State courts. This effect would be disastrous for EU legal unity since the Member State courts bear by far the main burden of interpreting and applying EU international procedural and private law.

These findings in favour of autonomous interpretation are backed up by the primacy of EU law. Since EU law is an independent source of law, it requires uniform interpretation. It is true that in its starting point, EU law resembled classical international law. However, EU law goes beyond international law in that it has (almost) absolute primacy over national law. Thus, autonomous interpretation is a natural consequence of the duty of loyalty towards the EU according to art 4(3) TEU, of the way the EU Treaty has created ‘a new quality in the international legal order’ (see, regarding the predecessor, ie the EEC Treaty (Treaty of 25 March 1957 establishing the European Economic Community, 294–8 UNTS), Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, 12). The primacy becomes clearer if one contrasts this with the ECHR (European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221), which is of interest to civil proceedings due to its art 6 on a right to fair trial (→Human rights and private international law). On the one hand, in →Germany, the Convention only enjoys the effect of a normal statute, as art 25 of the Basic Law for the Federal Republic of Germany (Grundgesetz of 23 May 1949, BGBl. 1, as amended) prescribes. On the other hand, in →Austria the Convention has the same status as the Austrian Constitution, based on art 49(2) of the Austrian Federal Constitutional Law p. 1009(Österreichische Bundesverfassungsgesetze, of 10 November 1920, Stammfassung BGBl. 1/1930, latest version BGBl. I 194/1999, as amended).

2. Party perspective: foreseeability of possible jurisdiction and the applicable law

Besides the mentioned normative arguments, the parties’ interests also need to be taken into account. Regarding the Brussels Convention 1968 and later the Brussels I Regulation (→Brussels I (Convention and Regulation)), the ECJ identified legal certainty as one of its major principles. The ECJ ruled that the jurisdictional rules which in particular

derogate from the basic principle [of . . . actor sequitur forum rei to be found today in art 4(1) Brussels I Regulation (recast)] should be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the State in which he is domiciled, he may be sued. (Case C-26/91 Jakob Handte & Co GmbH v Traitements Mécano-chimiques des Surfaces SA [1992] ECR I-3967, para 18)

The principle of legal certainty is of similar value in conflict of laws. The Rome I Regulation stresses that it intends to ‘contribute to the general objective of . . . legal certainty in the European judicial area, [so that] the conflict-of-law rules [on international contract law] should be highly foreseeable’ (Recital (16)). This objective is of relevance beyond commercial transactions. In international divorce cases the →Rome III Regulation (Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 343/10) intends to ‘create a clear, comprehensive legal framework in the area of the law applicable to divorce and legal separation in the participating Member States, provide citizens with appropriate outcomes in terms of legal certainty, predictability and flexibility’ (Recital (9)). In addition, the Rome III Regulation expressly intends to restrict the practice of →forum (and law) shopping (Recital (9) Rome III Regulation).

These statements account for the European legislature’s intent to create rather fixed conflict norms – a different approach compared to the common law countries in particular outside the EU (such as →USA, →Canada, →Australia) that prefer a flexible handling of the individual case at the inevitable expense of certainty and foreseeability. If legal certainty is one of the major objectives of EU private international law, then the foreseeability of possible venues and the applicable law must also be guaranteed in practice and this implies a uniform interpretation and application of the laws in question (for a view questioning whether the ECJ contributes to legal certainty though the Court regularly employs this concept see Johannes Schmidt, Rechtssicherheit im europäischen Zivilverfahrensrecht – Eine Analyse der Entscheidungen des EuGH zum EuGVÜ und der EuGVVO (Mohr Siebeck 2015)).

IV. Autonomous interpretation guiding the interpretation methods

The CJEU (→Court of Justice of the European Union) shares the core values and tools of legal interpretation with the Member States. After all, the EU is based on the common legal traditions of its Members. This is particularly evident with the general principles of EU law identified by the Court. Among them are the mentioned principles of legal certainty and equality before the law, but also proportionality and fundamental rights, which since the Treaty of Lisbon (Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, [2007] OJ C 306/1, consolidated version, [2012] OJ C 326/1) are also enshrined in the EU Charter of Fundamental Rights (Charter of Fundamental Rights of the European Union of 18 December 2000, [2000] OJ C 364/1 (consolidated version 2012/C 326/02, [2012] OJ C 326/391)) (→Human rights and private international law). Thus, unlike conventions and international soft law, EU secondary laws are embedded in much more elaborate uniform legal context that can require taking other regulations (horizontal) and the larger constitutional framework (vertical) into account.

Besides the scope of a specific measure, the degree of uniformity achieved by the several regulations in the area of private international law and international civil procedure is higher than in private law where the preferred legislative instrument are directives, which in contrast to regulations require implementing legislation by the Member States. Nevertheless, also in private international law and international civil procedure the concept of a multi-level system p. 1010is apt. The EU has no courts of its own in the Member States. Therefore, the national courts function also as EU courts, which, however, can interpret and apply laws differently.

That a text is potentially open to different readings is in no way a new phenomenon. After all, legal reasoning has been subject to different tensions, policies and philosophies since the earliest times. As a President of the Supreme Court and Chief Justice of →Ireland concluded:

Plato urged that laws be interpreted according to their spirit rather than literally. Voltaire expressed the view that to interpret the law is to corrupt it. Montesquieu viewed the judge as simply the mechanical spokesman of the law. The role of the Judge has been transformed since Montesquieu’s day but the historic tension still exists between the search for the ‘true intent’ of a legal norm and the desire for certainty and transparency in the application of the law. (John L Murray, ‘Methods of Interpretation: Comparative Law Method’ in European Court of Justice (ed), Actes du colloque pour le cinquantième anniversaire des Traités de Rome. L’influence du droit national et de la jurisprudence des juridictions des États membres sur l’interprétation du droit communautaire (Luxemburg 2007) 39)

Despite these different tendencies, the basic interpretation methods, ie the literal, historical, systematic and teleological, are shared in the European legal systems. Based on the roots of the EU in the common Member State traditions, the ECJ deploys these traditional rules that were identified by Friedrich Carl vonSavigny (see Hannes Rösler, ‘Interpretation of EU Law’ in Jürgen Basedow and others (eds), Max Planck Encyclopedia of European Private Law, vol 2 (OUP 2012) 979).

1. Verbal interpretation

As for all interpretation and due to the paramount principle of legal certainty, the starting point for the ECJ is the wording. However, the literal interpretation can be difficult in a Union with all its languages and the (ideal of) equal value of all the language versions (see for primary law art 55(1) TEU). After all, the ECJ ruled in CILFIT:

different language versions are all equally authentic. An interpretation of a provision of Community law thus involves a comparison of the different language versions. It must also be borne in mind, even where the different language versions are entirely in accord with one another, that Community law uses terminology which is peculiar to it. Furthermore, it must be emphasized that legal concepts do not necessarily have the same meaning in Community law as under the law of the various Member States. (Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415, paras 18 f)

Similarly, art 33 of the Vienna Convention on the Law of Treaties provides that to resolve discrepancies in official texts the common intention of the diplomatic conference is decisive (‘the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted’).

A good illustration of this technique is The Tatry decision regarding (today) art 29 Brussels I Regulation (recast) (→Brussels I (Convention and Regulation)) on the issue of another EU court first seized:

It should be noted at the outset that the English version of art 21 [Brussels Convention, now art 29 Brussels I Regulation (recast): ‘Klagen wegen desselben Anspruchs zwischen denselben Parteien’] does not expressly distinguish between the concepts of ‘object’ and ‘cause’ of action. That language version must however be construed in the same manner as the majority of the other language versions in which that distinction is made [eg: ‘demandes ayant le même objet et la même cause sont formées entre les mêmes parties’]. For the purposes of [. . . now art 29 Brussels I Regulation (recast)], the ‘cause of action’ comprises the facts and the rule of law relied on as the basis of the action. The ‘object of the action’ . . . means the end the action has in view. (Case C-406/92, The owners of the cargo lately laden on board the ship ‘Tatry’ v The owners of the ship ‘Maciej Rataj’ [1994] ECR I-5439, para 37)

2. Systematic, teleological and historical interpretation

Nonetheless, there are many instances where the plain meaning is insufficient even if one enriches it with a comparison of various language versions. The ECJ usually stresses the telos more than the Member States courts, in particular based on the aims of a regulation or directive as laid down in its recitals. In addition, the ECJ deploys the systematic approach. The ECJ continues in CILFIT:

[f]‌inally, every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, p. 1011regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied. (Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415, para 19)

Compared for example to German legal methodology or the CISG (where travaux préparatoires are used quite actively), the historical (or originalist) method is of less importance. After all, the development of legal texts of the Union is quite political and multi-voiced due to the different nations involved. However, regarding ‘Brussels I’ and ‘Rome I’, the Official Reports to the prior Brussels and Rome Conventions are still referred to quite often (Schlosser Report (Peter Schlosser, ‘Report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice, signed at Luxembourg, 9 October 1978’ [1979] OJ C 59/71); Giuliano-Lagarde Report (Report on the Convention on the law applicable to contractual obligations by Mario Giuliano, Professor, University of Milan, and Paul Lagarde, Professor, University of Paris I, [1980] OJ C 282/1)).

3. Comparative interpretation

A fifth method, which von Savingy did not mention, is the comparative approach. In order to stress the autonomy of EU law, ECJ decisions seldom openly engage in comparative interpretation (see for exceptions Ulrich Magnus, ‘Introduction’ in Ulrich Magnus and Peter Mankowski (eds), Brussels I Regulation (2nd edn, Sellier 2012) para 108). More comparative references and explanations can be found in the Options of the Advocate General, which in contrast to the actual decisions quite often quote decisions by other courts and academic writing. One also has to remember that the comparative perspective is inherent in all EU law. The ECJ with a judge from each Member State is itself a constant laboratory of comparative thinking. The 28 ECJ judges are ‘unity in diversity’, which was the motto for the EU in the failed Treaty establishing a Constitution for Europe ([2004] OJ C 310/1) (art I-8).

4. Autonomous interpretation as a meta principle

To sum up, autonomous interpretation is a meta principle that guides the interpretation and application of a given term. Autonomous interpretation can be ‘qualified as a rule of preference in favor of certain arguments’ (Martin Gebauer, ‘Uniform Law, General Principles and Autonomous Interpretation’ (2000) 5 Unif.L.Rev. 683) and one has to add: a preference in favour of certain methods such as the literal, comparative and purposive. Member State courts are obliged to make use of EU law as far as the wording allows in order to give EU law full effectiveness in the dispute in question. This means that a contra legem interpretation is also clearly impermissible under EU law since this would violate the fundamental principles of democratic consent and legal certainty. The ECJ highlighted that in regard to the interpretation of the Unfair Terms Directive (Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, [1993] OJ L 95/29): ‘the national court is bound to interpret national law [as a whole], [only] so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive’ (Joined Cases C-397/01 to C-403/01 Bernhard Pfeiffer and others v Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2004] ECR I-8835, para 113).

V. Scope of autonomous interpretation

The ECJ strengthens unity through the definition and development of autonomous concepts. The ECJ often decides in dubio pro communitate. (However, exceptions to a general rule have to be interpreted narrowly; see regarding the question of jurisdiction in case of a dual use of a product bought by a consumer, Case C-464/01 Johann Gruber v Bay Wa AG [2005] ECR I-439, para 27.) This also implies favouring autonomous interpretation. However, the ECJ quite often defines only the more general terms and leaves the details and of course the application more or less to the Member States courts. In European private law where, as mentioned, the preferred legislative instrument is the directive, the ECJ follows this strategy also to avoid to be overburdened by cases. In contrast, EU private international law and international civil procedure is usually embodied in regulations that p. 1012have in tendency a higher regulatory density and require more detailed answers by the ECJ.

There are also instances where the EU legislature deliberately leaves it to the ECJ to define complex terms. This is the case regarding the criterion of ‘directed at’ the consumer’s state in art 17(1)(c) Brussels I Regulation (recast) and art 6(1) Rome I Regulation (→Consumer contracts). A further example is the ‘habitual residence’ that art 19 Rome I Regulation largely leaves undefined for natural persons (→Domicile, habitual residence and establishment). In these cases, autonomous interpretation provides opportunities for judicial gap filling.

At a later stage, this jurisprudence can be the basis for legislative reforms. In the case of the recast of the →Brussels I Regulation (Convention and Regulation), the EU legislature drew from ECJ case law and its obiter dicta. For example, the legislature inspired from an obiter dictum to lay down in art 26(2) Brussels I Regulation (recast) that if the defendant is an insured person, a consumer or employee, that the court will, before assuming jurisdiction by appearance under art 26(1) Brussels I Regulation (recast), ensure that the defendant is informed of his right to contest the jurisdiction of the court and of the consequences of entering or not entering an appearance (the case is Case C-111/09 Česká podnikatelská pojišťovna as, Vienna Insurance Group v Michal Bilas [2010] ECR I-4545, para 31; see on this Koen Lenaerts and Thilo Stapper, ‘Die Entwicklung der Brüssel I-Verordnung im Dialog des Europäischen Gerichtshof mit dem Gesetzgeber’ (2014) 78 RabelsZ 252, 288). In sum, the reform pursued a piecemeal approach instead of the ambitious plans of the European Commission (Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), COM(2010) 748 final) to abolish the exequatur procedure also in substantive regard (see arts 39 and 46 ff Brussels I Regulation (recast)) and to extend the scope of the jurisdictional provisions to defendants domiciled in third states (Koen Lenaerts and Thilo Stapper, ‘Die Entwicklung der Brüssel I-Verordnung im Dialog des Europäischen Gerichtshof mit dem Gesetzgeber’ (2014) 78 RabelsZ 252; Rea-Constantina Economides-Apostolidis, ‘Brussels I in the European Practice – How Autonomous European Concepts Are Developed by the ECJ – Comparative Legal Research at ECJ Level – A View from the Inside of the Research and Documentation Directorate of the ECJ’ [2010] EuLF 256).

VI. Interdependent interpretation

In general, the interpretation of norms is subject to the relativity of legal terms. This means that the terms used in various instruments have to be interpreted independently from each other. It is obvious that definitions in substantive law cannot readily be transferred without further consideration. For example, a definition of ‘consumer’ in a substantive EU Regulation cannot be transferred to art 6(1) Rome I Regulation (see Case C-464/01 Johann Gruber v BayWa AG [2005] ECR I-439) (→Consumer contracts). If a legal system rejects the concept of →same-sex marriages this need not be the case in the area of private international law.

A recent example concerns the form of choice-of-court agreements regarding contracts concluded electronically (art 23(2) of the Brussels I Regulation, now art 25(2) Brussels I Regulation (recast)) (→Choice of forum and submission to jurisdiction). The ECJ ruled that it is sufficient if the purchaser has the possibility to click on a box stating ‘click here to open the general conditions of sale in a new window’ that contains a choice-of-court agreement. The ECJ argued that an interpretation regarding requirements set out by art 5(1) of the Distance Selling Directive (Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance selling, [1997] OJ L144/19) cannot be transferred ‘since both the wording of Article 5(1) of Directive 97/7 . . . and the objective of that provision, which is specifically consumer protection, differ from those of Article 23(2)’ (Case C-322/14 Jaouad El Majdoub v CarsOnTheWeb, ECLI:EU:C:2015:334, para 38). Thus, the ECJ gave more grounds (wording and purpose) than the fact that one of the norms stems from EU substantive law and that the other norm derives from EU international procedural law.

Further discussion is required on how far private international law and international civil procedure have to be separated due to their different functions. On the one hand, European international civil procedure ultimately favours the defendant. It offers the place of general jurisdiction following the idea p. 1013actor sequitur forum rei, ie that the claimant must follow the forum of the defendant’s residence (art 4(1) Brussels I (recast)) (→Brussels I (Convention and Regulation)). In addition, the closeness of the forum to facts that need to be proven is usually of more relevance than under private international law. On the other hand, private international law seeks to lead to an application of the law that has the closest connection to the subject matter in question. To serve the overall objective of legal certainty, the applicable law should be ‘highly foreseeable’, as Recital (16) of the Rome I Regulation states. Therefore, arts 4 ff of the Rome I Regulation contain objective standard →connecting factors. Nonetheless, several →escape clauses allow the judge a degree of discretion to determine a law that is more closely connected to the situation than that foreseen by the standard connections (eg art 4(3) Rome I Regulation).

However, despite the principle of separation between private international law and international civil procedure, an interdependent interpretation can be a useful method to systematize EU law in this area that has otherwise grown unsystematically over recent years. There are instances where a regulation states that an interdependent interpretation is intended by the legislature. For example, the substantive scope and the provisions of the Rome I Regulation (as its Recital (7) states) should be ‘consistent with’ the Rome II Regulation and the Brussels I Regulation (recast) (similarly Recital (7) Rome II Regulation). This allows for a coherent development of the concept of ‘civil and commercial matters’ within the meanings of arts 1 Brussels Regulation (recast), Rome I and Rome II Regulations.

In addition, Recital (24) of the Rome I Regulation, expressly clarifies that the concept of ‘directed activity’ as a condition for applying the consumer protection rule of art 6(1) Rome I Regulation has to be ‘interpreted harmoniously’ according to (today) art 17(1)(c) Brussels I Regulation (recast) (→Consumer contracts). The ECJ has highlighted this interpretive requirement in several decisions (see in particular Joined Cases C-585/08 and C-144/09 Peter Pammer v Reederei Karl Schlüter GmbH & Co KG (C-585/08) and Hotel Alpenhof GesmbH v Oliver Heller (C-144/09) [2010] ECR I-12527, para 39). Further legislative statements in favour of a harmonious interpretation can be found in Recital (17) of the Rome I Regulation. In addition, the provisions of the →Rome III Regulation should conform with those of the →Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ L 338/1) (Recital (10) of Rome III Regulation).

If such clear statements in EU legislation are absent, a transferral of definitions and concepts between enactments from the same area, but also across the two areas is possible, but with the following caveat. A certain synchronization is also conceivable, in particular where the legislative motives of enactments coincide. Such common purposes are often explained in more detail in the recitals of enactments, such as that of party autonomy (see arts 25 ff Brussels I (recast); arts 3(1) and (2) Rome I Regulation, art 14(1) Rome II Regulation), the prohibition on circumventing the law (see arts 3(3) and (4) Rome I Regulation, art 14(2), (3) Rome II Regulation), as well as in certain instances protection of the weaker party (see arts 17 ff, 20 ff Brussels I (recast), arts 6 and 8(1) Rome I Regulation, art 14 Rome II Regulation). A further common principle is the respect of predictability and legal certainty as the relevant ‘principles which underlie judicial cooperation in civil and commercial matters in the European Union’ (Case C-533/08 TNT Express Nederland BV v AXA Versicherung AG [2010] ECR I-4107, para 49), meaning that jurisdiction and applicable law should always be predictable for the parties (see in detail Jan D Lüttringhaus, ‘Übergreifende Begrifflichkeiten im europäischen Zivilverfahrens- und Kollisionsrecht – Grund und Grenzen der rechtsaktsübergreifenden Auslegung dargestellt am Beispiel vertraglicher und außervertraglicher Schuldverhältnisse’ (2013) 77 RabelsZ 31, 125, who rightfully stresses that a general presumption in favour of uniform interpretation is overly simplistic; cf, Markus Würdinger, ‘Das Prinzip der Einheit der Schuldrechtsverordnungen im Europäischen Internationalen Privat- und Verfahrensrecht – Eine methodologische Untersuchung über die praktische Konkordanz zwischen Brüssel I-VO, Rom I-VO und Rom II-VO’ (2011) 75 RabelsZ 102, according to whom the Brussels I, Rome I and Rome II Regulations ‘must be seen and interpreted as a single mutually connected entity’).

VII. p. 1014Conclusions

Autonomous interpretation avoids the re-nationalization of the considerably Europeanized fields of private international law and international civil procedure. Autonomous interpretation guides the interpretation tools common to all Member States. However, EU law requires a preference for comparing various language versions of EU legislation. In addition, the interpretation has to be in conformity with general European laws (eg the principle of non-discrimination in art 18 TFEU). The same is true for international conventions such as the ECHR (see Louwrens Rienk Kiestra, The Impact of the European Convention on Human Rights on Private International Law (Springer/Asser Press 2014)) and the Hague conventions (see the reference of art 15 Maintenance Regulation (Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, [2009] OJ L 7/1) to the Hague Maintenance Protocol 2007 (Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations, [2009] OJ L 331/19)).

An interesting question is whether the ECJ has developed a specific methodology for EU private international law and international civil procedure. In →Germany such a distinct methodology was recently claimed to exist in the field of the company law jurisprudence of the Federal Court of Justice (by Peter O Mülbert, ‘Einheit der Methodenlehre? – Allgemeines Zivilrecht und Gesellschaftsrecht im Vergleich’ (2014) 214 AcP 188). However, in contrast to the German Federal Court of Justice, the ECJ is not composed of specialized panels that focus on specific fields such as company law. Rather the ECJ is a universal court, being at once a supreme court for all the various areas of EU law and at the same time a constitutional court. In addition, the ECJ is a multinational court that needs to stress coherence more than traditional courts. In its approach, reasoning and interpretation methods, the ECJ has proved to be quite stable over the decades, though its decisions have grown more elaborate in the recent years.

It cannot be said that the Court approaches EU private international law and international civil procedure differently than other areas of EU law. Rather, the interpretation in this field (with the systematic and conceptual incoherencies quite often common to EU law) follows the well-established jurisprudence and the pattern of stressing the uniqueness and thus autonomy of EU law. For a community based on the rule of law (as opposed to the idea of a nation state), the homogeneous application of its laws is even more decisive than for other legal systems. For the deciding ECJ judges, the danger of divergent understanding is quite apparent since their own national background might initially guide their reading of new and controversial issues. To avoid the trend towards interpreting text in the light of a judge’s own domestic law, autonomous interpretation of all EU law in the sense of neutrality abstracted from national laws is required for all EU law. Thus, EU private international law and international civil procedure is part of the general endeavour to read EU law without resort to a (specific) national legal order.

Though the ECJ added the principle of autonomous interpretation to EU law, the Member State courts bear by far the largest caseload of relevance to the European judicial area. Thus, autonomous interpretation of norms gains significance on three levels. First, the CJEU interprets these norms by adopting a supranational perspective. Second, the ECJ’s guidelines provide in a vertical dimension for the second level, ie how the Member State courts have to interpret EU law. On the third level, Member State courts in practice can (ideally) orientate themselve towards the cases and can be assured that in order to safeguard uniformity, the true meaning and gap-filling solutions will be found within the four corners of the legal instrument in question or related enactments or the superior EU law in general. All these three levels, each with their own backgrounds and perspectives, contribute to the creation of common civil procedural standards. While the first and the last level are already quite international, the Member State courts remain rather state-centred. The Member State court should be encouraged to take more regard of courts from other Member States in order to strengthen Europe’s horizontal transjurisdictional relationships.

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